The Ballad of Frankie Silver (43 page)

I represented Burke County in the State Senate in 1840–41, and at the end of that time President Tyler honored me with the appointment of superintendent of the United States Mint in Charlotte. Two years later, I returned to the State Senate, and this year, 1851, I ran for the United States Congress. I lost, though, to Thomas Clingman, so perhaps I shall return to the state legislature next year, if the good people of Burke see fit to send me back.

Despite the time I have spent at the Mint in Charlotte, and with the legislature in Raleigh, Morganton continues to be my home. A dozen years ago I built a little house on North Anderson Street. It is a one-story Greek Revival–style house, designed by Mr. Marsh of Charlotte, nothing as grand as Belvidere, of course, but it has a fine pedimented entrance porch supported by fluted Doric columns, and it is quite suitable for a town-dwelling attorney of modest means and no pretensions to aristocracy. I shall be happy to spend the rest of my days in that house, when I am no longer called upon to serve the citizenry with duties elsewhere.

Old Squire Erwin died in 1837, two years before his granddaughter Delia was born to Elizabeth and me. So now we have two sons, William and Alfred, to carry on the names of our departed loved ones, and our darling Delia, who is a proper little lady like her mother.

I saw Nicholas Woodfin from time to time after the trial of Frankie Silver, of course, for we were brother attorneys in the same district, and our paths were bound to cross both professionally and socially, for he, too, was a Whig in politics. He had prospered in the years since I first knew him. He is a shirttail relative now, for he married Miss Eliza Grace McDowell of Quaker Meadows, my wife’s cousin, and though they make their home in Asheville, we see them from time to time.

Woodfin served in the State Senate the year after I left it, but his true renown was as an eloquent trial attorney. By tacit agreement, we did not speak of his first capital case for many years thereafter. I think he was ashamed of his failure to secure a pardon for his client, and I think he was genuinely grieved and blamed himself for her tragedy. Since then, I have heard many of our fellow attorneys remark on the curious fact that Nicholas Woodfin refused to represent clients who were on trial for their lives. I thought I knew the reason why.

It was nearly twenty years after the case of Frankie Silver that we met again under circumstances that called to mind the events surrounding our first encounter.

In November 1851, William Waightstill Avery, a prominent fellow attorney and my own nephew by marriage, was charged with murder.

Waightstill was a student in college at the time of the trial of Frankie Silver, which made him nine years younger than I, and I had always considered myself an older relative rather than a comrade. He was the son of my wife’s eldest sister Harriet, who had married Isaac Thomas Avery of Swan Ponds. Young Waightstill, who was named after his paternal grandfather, North Carolina’s first attorney general, was a clever and hardworking fellow who had graduated as valedictorian of his class at the state university in Chapel Hill. He went on to read law with Judge William Gaston, qualifying to practice in 1839, the year that I was elected to represent Burke County in the North Carolina State Senate. In 1851, at the time of his trial, Waightstill had just completed a second term representing Burke County in the North Carolina House of Commons. He was thirty-five years old.

The tragedy that led to his being charged with murder began eighteen days earlier, when Waightstill Avery was arguing a civil case in the McDowell County Superior Court. He was representing a McDowell County man named Ephraim Greenlee, a former client of attorney Samuel Fleming of Marion. Greenlee was accusing Fleming of fraud in connection with some disputed property, and during the course of arguing the case, Waightstill Avery blamed Sam Fleming for the disappearance of a will that was relevant evidence in the matter. I am not sure whether he was arguing that Fleming was careless, incompetent, or deliberately concealing the pertinent documents for his own gain, but one interpretation is scarcely better than the other when a lawyer’s reputation is at stake.

Fleming took exception to this slur on his skills as an attorney, for, of course, he denied any blame in the matter. Fleming was a tall, red-faced fellow with a thatch of auburn curls and a fiery temper to match. He towered over young Waightstill Avery, quivering with indignation and shouting that he’d have satisfaction for this insult to his honor.

Avery took this for the usual legal bravado that one hears bandied about in the law courts, but this time he had misjudged his opponent, with fatal consequences. When court was adjourned, Avery gathered up his papers and left the courthouse, but when he got outside, he saw that Samuel Fleming was waiting in the street for him, shouting abuse and brandishing a rawhide horsewhip in a threatening manner, while the north wind whipped his cape about him, making him look like an avenging devil. There’s those who would say that’s exactly what he was. Sam Fleming was not rich in friendships.

Now my nephew Avery was a small man, and he had perhaps the more pride and dignity because of it, but he was by no means a coward, nor was he an undistinguished citizen of the Carolina frontier. He had no reason to fear a fellow attorney, for although I say that he was a citizen of the “Carolina frontier,” things had changed a good deal in the two decades since the trial of Frankie Silver. True, there were as yet no railroads in the mountains, but the roads were better now. The population continued to grow, and the cities were no longer rustic hamlets dotted through the endless forest. The Indians had been removed across the Mississippi, the economy was flourishing, and western North Carolina was as pleasant and peaceful a place as one could find upon God’s green earth. We were civilized gentlemen serving the law, and brothers all by the mutual respect conferred by our profession.

Samuel Fleming cared nothing for the sanctify of the legal fraternity, nor for the peace of McDowell County. He was after blood.

I was not present when the altercation took place, but I heard many accounts of it afterward, and everyone agreed that Samuel Fleming was abusive and reckless in his manner. When Waightstill Avery tried to edge past his tormentor, knocking him down in the process, the enraged Mr. Fleming flung himself upon the smaller man, pounding him about the head and shoulders with a rock until he was stunned into insensibility. While poor Waightstill sat there in the muddy high street, attempting to get his bearings and regain his footing, Samuel Fleming lit into him with the horsewhip, punctuating each slash with an oath.

In his dazed and weakened condition, poor Avery could not defend himself. Indeed he was so much smaller and less robust than his opponent that it is doubtful whether he could have given a good account of himself even if he had been perfectly fit. He lay there in the mire, hands braced before him to shield his face and neck from the blows, while blood from the welts on his cheek dripped onto his broadcloth coat and spangled the mud beneath him with flecks of red.

I would like to think that someone in that great throng of onlookers went to his aid, while other right-thinking citizens pulled Samuel Fleming away and tried to talk sense into him. I never heard of anyone interfering, though, and I am forced to conclude that a crowd watched this shameful performance, and perhaps even cheered it on, with no thought toward rescuing the unfortunate victim.

At last—no doubt when his stream of invective had given out and his arm was tired—Fleming ceased his attack upon my unfortunate nephew and swaggered off, boasting about the thrashing that he had given to the young turkey cock who would question his competence as a lawyer. Waightstill Avery was helped to a house nearby, where his wounds were seen to, while a servant took a damp rag and tried as best she could to remove the streaks of mud from his coat and breeches. He was not badly hurt, but the shame and injustice of that public whipping festered inside Waightstill Avery worse than gangrene ever cankered an injured limb. In Morganton he made light of the cuts and bruises and kept his own counsel about his feelings toward his assailant, but word of Fleming’s continual boasting reached us in Burke County, and all of us knew that the incident was not over.

Two weeks after the confrontation in Marion, Mr. Fleming had yet another occasion to appear in court, but this time he was representing clients before Judge Kemp Battle at the new courthouse in Morganton. I call this building the new courthouse even though it is twenty years old, but I am nearly fifty now, and time does not move as slowly for me as it once did. This present courthouse was under construction at the time that Frankie Silver was in jail awaiting her execution, and I remember feeling glad at the time that after the tragic circumstances of the Silver case, we could put the past behind us and begin again the pursuit of justice in a new building. I have since learned that it is not so easy to wipe the slate clean; there is enough tragedy and iniquity in the world to fill any amount of courthouses and judicial buildings.

I was there when it happened, but I confess that I felt no inkling of the tragedy that was to come.

Sam Fleming approached the table where Waightstill Avery was concentrating on a point of law in the case at hand. I did not think that Waightstill had even seen Fleming coming, so intent was he upon the argument before the judge, but the incident in Marion two weeks earlier still rankled, and he must have thought that Fleming intended to torment him further. When Fleming was an arm’s length away, Waightstill raised a pistol and pointed it toward his enemy, and before anyone in the courtroom could cry out or attempt to stop him, he fired the weapon point-blank at Samuel Fleming’s heart.

He was dead before anyone of us reached him, and Waightstill made no move to flee the consequences of his action. He stood there calmly, handed the pistol over to the bailiff, and said that his honor was satisfied now, and that he was willing to be tried for his actions, because Sam Fleming needed killing. And when the facts were put forth in the presence of a jury, Waightstill thought that justice would be done. They led him away, and took him to the jail for form’s sake, but he was out on bond before nightfall. I joined the family council at Belvidere to plan the strategy of my nephew’s defense.

The trial was held in November 1851, only a few weeks after the incident. Waightstill would not have to languish in jail for months awaiting judgment as poor Frankie Silver had done. He was neither poor nor friendless. When the day came for William Waightstill Avery to appear before the court in Morganton to answer for the death of Samuel Fleming, he was represented by four members of counsel, all gentlemen that he could count as friends, and all distinguished attorneys, if I may say that without boasting, for I was one of their number.

So was Nicholas Woodfin. I knew him better now than I did all those years ago, when, as a newly fledged attorney, he had defended Frankie Silver. Now he was counted one of us, a kinsman of sorts, for he had been married to Eliza Grace some dozen years now.

The two other members of counsel were even more prominent men in the state, and perhaps they were chosen for their eminence more than for their legal skills. Mr. Tod R. Caldwell and General John Gray Bynum of Rutherfordton were both lawyers, but both had gained distinction in the political sphere rather than in the courtroom.

Tod Caldwell was an Irishman whose grandfather had been exiled from the old country in the rebellion of 1798. His father had been a shopkeeper in Morganton, and young Tod, who was a year or two younger than my nephew Waightstill Avery, had clerked in his father’s establishment before his own talent and ambition had led him off to study at the University of North Carolina. He simultaneously read law under the tutelage of David Lowry Swain, and became the first person ever to graduate from the university and receive his license to practice law at one and the same time. Then he went into law practice in Morganton, entering politics about ten years ago, when the county elected him to serve in the North Carolina House of Commons with our other county delegates, Mr. O. J. Neal and William Waightstill Avery. The two young men were friends and adversaries throughout their lives, for a town like Morganton is hardly big enough to cage two such lions. I have often thought that one of them will end up being governor. I had not thought that the other would end up on the scaffold.

“He is to have four lawyers?” I said to Woodfin when we all assembled a few days before the trial.

Nicholas Woodfin smiled. “There is no one so cautious—or so rightfully afraid—as an attorney who must face trial by jury.”

“I suppose it is mainly for show,” I said. “To demonstrate to the jury that the most prominent citizens of western North Carolina stand behind Waightstill in his hour of trouble.”

“Mostly that,” Woodfin agreed. “I believe I am to do most of the speechmaking, since I have the most trial experience.”

“You have made quite a name for yourself in the courtroom since we first met,” I told him. “We are all glad that you are making an exception to your rule about not appearing in capital cases.”

Woodfin nodded. “Waightstill is family as well as a friend and colleague,” he reminded me. “Besides, I do not really consider this a capital case.”

“Waightstill shot the fellow in open court. I saw it. It was no duel. I do not think that Fleming even saw the weapon. But, of course, as one of Waightstill’s attorneys, I cannot testify.”

Nicholas Woodfin smiled. “Nor can Waightstill, since he is the defendant, but from what I hear, there were witnesses aplenty to the horsewhipping incident in Marion. I think we can show a jury that Sam Fleming needed killing.”

“But why not challenge the fellow to a duel?” I asked. “Lord knows there is family precedent for that. Waightstill’s grandfather and namesake once got into just such a quarrel with a fellow lawyer over in Tennessee. They agreed to a duel, and when the time came for the battle of honor, each man carefully fired a shot over the head of the other. They left the field the best of friends—or so the family says.”